Davenport v. Stephens

95 Wis. 456 | Wis. | 1897

Newman, J.

Whether the defendant’s judgment became a lien upon plaintiff’s lots depends upon that other question— whether Thomas Davenport ever had sufficient title in the lots for the lien of that judgment to attach to, during the passage of the title through him from Keyes to the plaintiff. No question is made that the, plaintiff paid the consideration which, was paid for the lots; nor that the conveyance was taken in the name of Thomas Davenport, without her knowledge and consent; nor is her acquiescence shown. On the contrary, she immediately demanded the title to be made to her. It is clear that in that case the conveyance vested in Thomas Davenport.no interest in the land. It conveyed to him but the bare legal title, which he held only in trust for his wife. In equity she is regarded as the real owner. It is a trust arising by implication of law (2 Pomeroy, Eq. Jur. §§ 1037-1043), and is excepted from the requirements of the statutes of frauds (R. S. secs. 2076, 2079; Kluender v. Fenske, 53 Wis. 118; 2 Pomeroy, Eq. Jur. § 1042; Foote v. Bryant, 47 N. Y. 544; Reitz v. Reitz, 80 N. Y. 538; Haack v. Weicken, 118 N. Y. 67). If the trust had been expressed on the face of the deed from Keyes, the statute (secs. 2073-2075) would have executed it at once by vesting the legal as well as the equitable title in the plaintiff. In that case there would have been nothing to which the lien of the defendant’s judgment could attach. Hannig v. Mueller, 82 Wis. 235. The effect of the voluntary execution of the implied trust by the •execution of the deed from Thomas Davenport to the plaintiff was the same. It operated to pass the title to the plaintiff to the same effect. as if the trust had been expressed in the deed from Keyes. Whatever title Thomas may be deemed to have had a.t any time was subject to be defeated and lost by the execution of the trust. Equity would have •enforced the trust, directly, or, in a proper case, would reform the deed upon which the trust arose so that it should •declare the trust upon its face, so as to prevent the lien of ■the judgment. Sullivan v. Bruhling, 66 Wis. 472. The voluntary conveyance operates the same effect as the reformation of the deed. It supplies the place of, and is equivalent in law to, a declaration of the trust in the original deed. It ■relates back to the execution of the original deed, so as to pass title as of that date. Main v. Bosworth, 77 Wis. 660. In order to prevent injustice, equity often considers that to have been done which ought, in equity, to have been done. The defendant is in no position to complain. The title of his debtor in the lots was merely nominal. His lien was no ■more comprehensive than his debtor’s title. He is not a bona fide purchaser. He has parted with nothing on the faith of the deed as it stood, and is in no position to object ¡to the doing of complete equity between his debtor, the nominal trustee, and the beneficiary of the implied trust. The effect of the whole transaction is that no title to which the lien of defendant’s judgment could attach ever rested in Thomas Davenport.

Some question was raised whether the plaintiff has shown such possession as should entitle her to maintain this action. It is entirely immaterial whether she was in actual possession or not. No other person was in the actual possession. One who has the legal title to land, whether in possession or ■not, may maintain an action in equity to remove a cloüd of title upon his land, where the invalidity of the hostile claim cannot be shown by any record, but must be proved by evidence aliunde. Pier v. Fond du Lac, 38 Wis. 470; Goodell v. Blumer, 41 Wis. 436; Herren v. Strong, 62 Wis. 223. In this case the invalidity of the defendant’s claim could be shown only by evidence dehors the record. Sec. 3186, B. S., extends, rather than limits, the jurisdiction of the courts in the cases to which it is applicable. Fox v. Williams, 92 Wis. 320.

By the Gowrt.— The judgment of the circuit court is affirmed.